ORDER ON PROSECUTION APPLICATION FOR ADMISSION OF EVIDENCE UNDER
RULE 92 BIS

__________________________________

Office of the Prosecutor:

Ms. Susan Somers
Mr. Philip Weiner

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"),

BEING SEISED of the "Prosecutionís Application Pursuant to Rule 92 bis(A) Sof the Rules of Evidence and Procedure of the International Tribunal ("Rules")C", filed by the Office of the Prosecutor on 8 December 2003 ("Application"), seeking the admission into evidence of written statements, in whole or in part, of sixty-two witnesses, and requesting that forty-one of the statements should be admitted absent cross-examination,

NOTING that the Application also sought leave to move two witnesses from the Rule 92 bis witness list to the Prosecutionís live witness list,

NOTING the Defenceís response to the Application, filed on 2 February 2004 ("Initial Defence Response"), in which it opposed the admission of:

(a) the statements of thirty-four of the witnesses, in any manner; and

(b) six witness statements, without cross-examination; but did not oppose the admission into evidence without cross-examination of the remaining twenty-two witness statements, though it reserved the right to apply for cross-examination in the course of the trial,

NOTING that the Initial Defence Response did not set out the Defenceís position on the Prosecutionís request to call two witnesses, initially identified as 92 bis witnesses, for live testimony,

NOTING the Defenceís "Addendum Qua Response Rule 92bis Motion", filed on 23 August 2004 ("Defence Addendum"), in which it did not oppose the Prosecutionís request to call these two live witnesses, so long as the Accusedís right of cross-examination were guaranteed,

NOTING that the Defence Addendum communicated a shift in the Defenceís position on the admission of the tendered witness statements into evidence, so that it now

(a) withdrew its opposition to the admission into evidence of twenty-nine witness statements, as long as the Accused was accorded "at least" the opportunity to cross-examine the witnesses;

(b) completely withdrew its opposition to the admission of one witness statement without cross-examination;

(c) expressly agreed to the admission of seven witness statements without cross-examination, though reserving the right to seek leave to cross-examine them in the course of the trial;

(d) apparently did not oppose the admission of four witness statements without cross-examination, though it had previously opposed their admission altogether;

(e) insisted upon cross-examination of thirteen witnesses, where it had previously accepted the admission of their statements without cross-examination; and

(f) maintained its request for cross-examination of the six witnesses so identified in the Initial Defence Response,

NOTING the Prosecutionís reply to the Addendum, filed on 30 August 2004 ("Prosecutionís Reply"), in which it did not object to the Defenceís request that forty-three witnesses be made available for cross-examination, but also did not concede the Defenceís underlying reasoning for making the request,

NOTING that the Prosecutionís Reply also did not object to the cross-examination of one witness, even though the Defence Addendum had indicated the Accused would waive his right to cross-examine that witness,

CONSIDERING that Rule 92 bis (A) of the Rules allows a Chamber to admit, in whole or in part, the evidence of a witness in the form of a written statement, in lieu of oral testimony, which goes to proof of a matter other than the acts and conduct of the accused, as charged in the indictment;

CONSIDERING that the Appeals Chamber has made clear that there are three
steps in any decision under Rule 92 bis of the Rules: (1) whether the
statement is capable of admission under Rule 92 bis; (ii) if capable
of admission, whether there are any other reasons why, in the exercise of the
Trial Chamberís discretion, the statement ought not to be admitted; and (iii)
if the statement is admissible, whether the witness whose evidence is contained
in the statement should be required to appear for cross-examination under Rule
92 bis(E) of the Rules,1

CONSIDERING that while it is plainly the duty of the pre-trial Judge
and the pre-trial Chamber to take any measure necessary to prepare the case
for a fair and expeditious trial,2 the Trial Chamber
is of the view that a decision on the Application, involving as it does a critical
examination of the content of the evidence, and manner in which it is to be
presented at trial, must be left to the Trial Chamber that will hear the case,

CONSIDERING that where a statement is capable of admission under Rule 92 bis of the Rules, the Trial Chamber must still exercise its discretion whether to exclude it, or determine whether evidence admitted in written form requires the witness to attend for cross-examination, both matters best left for determination by the Trial Chamber trying the case,

CONSIDERING that Rule 65 ter (K) of the Rules provides, in relevant
part, that "[a] motion made before trial shall be determined before trial unless
the [pre-trial] Judge, for good cause, orders that it be deferred for determination
at trial", and the Trial Chamber is of the view that there is good cause for
deferring this matter for determination at trial,

CONSIDERING that paragraph (C)(7) of the Practice Direction on the Length
of Briefs and Motions ("Practice Direction")3 states
that a party seeking authorisation to exceed the prescribed page limits "must
provide an explanation of the exceptional circumstances that necessitate the
oversized filing";

FINDING that, in the circumstances of the case, the requirements of paragraph (C)(7) of the Practice Direction have been met and that the variations sought are warranted in this case;

CONSIDERING that Rule 127(A)(ii) permits a Trial Chamber to recognise as validly done any act done after the expiration of time once good cause has been shown,

PURSUANT TO Rules 54, 65 ter, and 127(A)(ii) of the Rules, and paragraph (C)(7) of the Practice Direction,

HEREBY ORDERS AS FOLLOWS:

The Defence is granted leave to exceed the page limits prescribed by the
Practice Direction on the Length of Briefs and Motions;

The Defence is granted leave to file its Addendum after the expiration of
time for filing a response to the Prosecutionís Application;

The Prosecutionís Application is deferred for determination by the Chamber
trying the case.

Done in English and French, the English text being authoritative.

___________________________
Patrick Robinson
Presiding

Dated this twenty-second day of October 2004
At The Hague
The Netherlands